COVID-19 Information

Information on COVID-19 (coronavirus) and your workplace rights

Introduction

This information is for WA employees whose employment has been affected by COVID-19 (coronavirus). If you have further questions after reading this page, you may wish to see some of the other resources listed at the bottom.

Employees in WA are either national system employees or state system employees. Some of the information on this page depends on which system you are in. If you are unsure, see our fact sheet, “National or state system employee: which one are you?”.

You can click on any of the links below to skip to the issue you want to read first.

Please not that this information is in the process of being updated due to recent changes to the law.

I don’t wish to attend the workplace as a precaution. Can I refuse to go to work?

Employees have the right to a safe workplace. However, your employer also has the right to direct you to attend the workplace, as long as their direction is lawful and reasonable. Where you and your employer disagree about what is reasonable for health and safety, you may wish to consult current government advice on coronavirus for further information. You should make an effort to be reasonable and flexible in negotiating with your employer. For example, you may wish to explore whether you can work from home, whether there are any improved social distancing procedures that could be introduced in the workplace, or whether you could take annual leave to avoid attending the workplace.

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My employer has directed me not to attend the workplace for health/safety reasons but I am still being paid my wage. Can they do this?

Employees are required to comply with the reasonable and lawful directions of their employers. If your employer has directed you not to attend the workplace because of the coronavirus but is still paying you your full wage, it is likely that their direction is lawful. Given the coronavirus situation, most workplaces would be acting reasonably in requesting that their employees work from home.

If you think your employer is not allowing you to attend the workplace for reasons other than the coronavirus, then their direction may not be lawful. For example, if you think you are being prevented from attending the workplace for raising safety concerns, this might be an unlawful action. National system employees can see our fact sheet on general protections for more information.

If your employer isn’t allowing you to attend work and is not paying you but hasn’t dismissed you, then you may have been stood down (see below).

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I can’t go to work as I need to take care of my child or another person who is unwell

If you are a permanent employee, you are entitled to take paid personal/carer’s leave if an immediate family member (including a child), or member of your household requires care or support due to a personal illness or an unexpected emergency.

Permanent employees get 10 days of personal/carer’s leave for each year they are employed. Personal/carer’s leave starts accruing when an employee starts employment and any unused leave accumulates.

If you are a permanent employee and you have exhausted your paid personal/carer’s leave, you are entitled to 2 days of unpaid carer’s leave for each occasion when an immediate family member or member of your household requires care or support due to a personal illness or an unexpected emergency.

If you are a casual employee, you aren’t entitled to paid personal/carer’s leave, but you are entitled to 2 days of unpaid carer’s leave for each occasion when an immediate family member or member of your household requires care or support due to a personal illness or an unexpected emergency.

Your employer is not allowed to dismiss or punish you for exercising your workplace right to take personal/carer’s leave. See our fact sheets on general protections claims (national system employees), unlawful termination claims (state system employees) and discrimination for more information.

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I can’t go to work as I am unwell

If you are a permanent employee, you can stay home if you are unable to attend work due to a personal illness or an unexpected emergency and are entitled to be paid personal/carer’s leave.

Permanent employees get 10 days of personal/carer’s leave for each year they are employed. Personal/carer’s leave starts accruing when an employee starts employment and any unused leave accumulates.

If you have exhausted your personal/carer’s leave, or if you are a casual employee, you are still entitled to stay home but you are not entitled to be paid.

Your employer is not allowed to dismiss or punish you for exercising your workplace right to take personal/carer’s leave or because of a temporary absence from work due to illness. See our fact sheets on general protections claims (national system employees), unlawful termination claims (state system employees) and discrimination for more information.

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I can’t go to work as I am self-isolating or in quarantine

National system employees

If you are a national system employee, many Modern Awards have been temporarily amended in response to the coronavirus pandemic to allow employees to take unpaid pandemic leave. Employees can take up to two weeks’ unpaid pandemic leave if they are prevented from working because:

they are required by government or medical authorities or on the advice of a medical practitioner to self-isolate; or

they are otherwise prevented from working by measures taken by government or medical authorities in response to the coronavirus pandemic.

Additionally, employees who are covered by these Modern Awards can also make an agreement with their employers to take twice as much annual leave at half-pay.

You can call the Fair Work Infoline to see if this applies to you.

State system employees

If you are a state system employee and you are in the private sector (i.e. not a state government employee), you are entitled to up to two weeks’ unpaid pandemic leave if:

you are required, by government or medical authorities or acting on the advice of a medical practitioner, to self-isolate; or

you are otherwise prevented from working by measures taken by the government or medical authorities in response to the COVID-19 pandemic.

You can also make an agreement with your employer to take annual leave at half pay. State system employees can also make a written agreement to take annual leave in advance (i.e. before you have accrued it).

You can call Wageline for further information.

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I am a permanent employee and I’ve been stood down without pay. Can my employer do this?

The laws about being stood down are different depending on whether you are in the national system or the state system. Please see the relevant section below. If you are unsure about whether you are a national system or a state system employee, please see our fact sheet, “National or state system employee: which one are you?”.

Stand-down for national system employees

If you are a national system employee, your employer can stand you down – i.e. direct you to stop working – without pay in a range of circumstances under the Fair Work Act, including where:

there has been a stoppage of work for any cause for which the employer cannot reasonably be held responsible; and

you cannot be usefully employed due to the stoppage of work.

If you have a written contract of employment or there is an enterprise agreement that applies to your employment, you should check whether it discusses stand-down.

If your contract or enterprise agreement does mention the circumstances in which you can be stood down, then your employer can stand you down in those circumstances and must follow any procedures mentioned in the contract or enterprise agreement (e.g. any requirements to consult with you or provide you with notice).

An employer isn’t required to pay you if they’ve stood you down lawfully under the Fair Work Act. However, you still accrue leave as normal.

Many businesses will be severely affected by the coronavirus situation. If your employer has had to stop operating or has shut down because of a government directive, and this is the reason you have been stood down, it is likely that your employer’s action is lawful.

If your employer has significantly reduced business or activity due to the coronavirus, it is difficult to say whether standing you down is lawful or not, as it will depend on the circumstances. In order to stand you down lawfully, your employer has to be able to demonstrate that:

there is a stoppage of work;

the cause of the stoppage is one for which the employer can’t reasonably be held responsible (this part might be satisfied if the cause of the stoppage is the coronavirus); and

you cannot be usefully employed as a result of the stoppage of work.

If you think that:

there hasn’t been a stoppage of work; or

your employer can still usefully employ you; or

you have been stood down for a reason unrelated to the coronavirus; or

your employer has not complied with any stand-down requirements under your contract or enterprise agreement; and

you are ready, willing and able to work,

then your employer may be in breach of the Fair Work Act, your contract or enterprise agreement. They may be required to pay you your ordinary pay.

If you think your employer may have breached the Fair Work Act, your enterprise agreement or your contract of employment, you may wish to contact the Fair Work Ombudsman or our Advice Line.

Stand-down for state system employees

If you are a state system employee, your employer can only stand down you down without pay if they are authorised to do so under your contract, an industrial agreement or an award .Check your contract, any industrial agreement or award that applies to you to see whether these documents say anything about stand-down. To find out if you are covered by a state award and if it contains rules around stand-down, you can call Wageline.

If your employer has directed you to stop work without pay, and there is nothing in your contract or any applicable industrial agreement or award that allows them to do this, then your employer may be acting unlawfully. As a permanent employee, you generally have a right to be paid where you are ready, willing and able to work. If you think your employer may have stood you down unlawfully, you may wish to contact Wageline or our Advice Line.

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Can I be paid my leave while I’m stood down?

You can negotiate with your employer to take your annual leave while you are stood down. Your employer cannot unreasonably refuse a request to take annual leave. In most circumstances where you are not working due to coronavirus, a request to take annual leave would be considered reasonable.

National system employees

If you are a national system employee, many Modern Awards have been temporarily amended during the coronavirus pandemic to allow employees to take annual leave at half pay. You can call the Fair Work Infoline to see if such a clause applies to you.

You can also negotiate with your employer to take annual leave at half pay, however, they are not obligated to do so if it is not in an award, agreement or contract applicable to you.

State system employees

If you are a state system employee, you can make an agreement with your employer to take annual leave at half pay. State system employees can also make a written agreement to take annual leave in advance (i.e. before you have accrued it). You can call Wageline for further information.

You should be aware that taking your annual leave may make you ineligible for government benefits, as you are still being paid.

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I’m not sure if I’ve been stood down or dismissed

If you think you may have been dismissed, see the section on dismissal below. If you are not sure if you have been stood down or dismissed, you may wish to write to your employer and ask them to explain to you which it is.

If your employer has told you not to come to work, is not paying you and refuses to explain whether you have been stood down or dismissed, you may wish to consider whether your employer is forcing you to resign. Being forced to resign is also known as “constructive dismissal”. See our fact sheet “constructive dismissal” for further information.

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Can I work for another employer while I’ve been stood down?

Employees have a duty of fidelity to their employers. This means that employees are generally required to be loyal to their employers and not act in a way that conflicts with their employers’ legitimate business interests.

If an employee accepts a job with a competitor whilst staying employed with their original employer, then this might breach their duty of fidelity, depending on the circumstances.

On the other hand, the courts have often been reluctant to impose restrictions on what employees can do in their free time.

Some employees’ contracts also contain clauses which seek to prevent them from working for competitors or which place certain obligations on employees to notify their employers of their intention to work for another employer, particularly in circumstances where there might be a conflict of interest between the two employers.

Whether you can work for another employer at the same time as being employed by your existing employer will depend on the circumstances – for example, your level of seniority within the organisation, the industry that both employers are in, whether they are in competition or have any conflict of interest and so forth.

If you are seeking to be employed by two or more employers at once, you may wish to check your contract and see whether there are any restrictions on this. You may also wish to speak to your employer. Given the exceptional circumstances as a result of the coronavirus, it may be reasonable for your employer to be more lenient than usual with allowing you to work for another employer at the same time.

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I’m a casual employee and I’m being given less shifts or I’m not being given shifts at all because of the coronavirus. Can my employer do this?

Casual employees are generally employed on an irregular basis, with no set roster or routine. They have no guarantee of ongoing employment.

If you are a casual employee and your employer’s business has significantly reduced due to the coronavirus, it is likely to be lawful for your employer to reduce your shifts or not provide you with shifts for this reason. There may be requirements to consult with you first – check your contract and any applicable award or industrial agreement.

However, if you have been working regular shifts or have been working for the employer for a long period of time, you may actually be considered a permanent employee (even if you are called a casual). See our fact sheet entitled Permanent or casual employee: which one are you? If you are in fact a permanent employee, your rights will be different – see the next topic below.

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I’m a permanent employee and my employer wants to reduce my pay rate, my hours of work, or other conditions because of the coronavirus. Can they do this?

Generally, as a permanent employee, your employer is not entitled to change your conditions of employment (including your rate of pay or the number of hours you work) unless you agree to this or your contract clearly authorises them to do this.

If your employer wants to change your conditions of employment, generally they need to consult with you and any other affected employees first. You should check your contract and any applicable award or industrial agreement to see what they say about consulting with employees about changes in the workplace.

If your employer changes your conditions of employment without your agreement or without a clear right to do so in your contract, the employer may be in breach of your contract. If the change is substantial, this might be viewed as a termination of your employment contract.

If you don’t agree to changing your conditions of work in the way the employer proposes, you may wish to let your employer know that you don’t agree as soon as possible. If you start working under the changed conditions, this may be seen as you agreeing to the changes. This is called “acquiescence”.

However, given the exceptional circumstances as a result of the coronavirus, you may wish to think about why your employer is asking you to change your conditions of employment. It may be that your employer is cutting rates of pay or hours as an alternative to making you redundant. Insisting on your contractual conditions may leave your employer with no choice except to make you redundant, as they may not be able to afford your position without changes.

If your rate of pay is being reduced, it cannot be reduced below the minimum wage you are entitled to by law, or the wage set out any award or industrial agreement that applies to you. If you are unsure of the minimum rate of pay for your job, you can call Wageline (state system employees) or the Fair Work Infoline (national system employees).

You can see our fact sheet on contracts of employment for further information.

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I’ve been dismissed because my employer can’t afford to pay me due to the coronavirus situation

If you have been dismissed from your job because your employer can’t afford to pay you due to the coronavirus situation, it’s likely you have been made redundant.

A redundancy is a dismissal at the employer’s initiative because the employer no longer requires the role to be done by anyone or due to the insolvency or bankruptcy of the employer. If your job no longer exists, you have probably been made redundant. If someone else takes your job after you have been fired, then it’s probably not a real or “genuine” redundancy.

If your employer has dismissed you because the coronavirus has damaged the business and they can’t afford to pay you, or anyone else, to do your job, you have likely been made redundant, and it is probably a genuine redundancy.

Before making you redundant, there are a few things your employer must do:.

Your employer should consider whether they can redeploy you (for example, any other available jobs you are qualified to perform). If it was reasonable to redeploy you, this will not be a genuine redundancy.

If you are covered by an award or industrial agreement with a consultation obligation, your employer has to consult with you and other employees before making major changes like redundancies. You can call Wageline (state system employees) or the Fair Work Infoline (national system employees) to see if any consultation obligations apply to your employment. If the employer was required to consult with you before making you redundant and did not do so, this will not be a genuine redundancy.

If your employer does make you redundant and you are a permanent employee, your employer may be required to make certain payments to you. For example:

Your employer may have to pay you redundancy pay. You are not necessarily entitled to redundancy pay as there are certain criteria you must meet in order to be eligible for redundancy pay. For example, if your employer is a small business, if you have worked for your employer for less than a year, if you are a casual employee or if you are an apprentice or trainee, you may not be entitled to redundancy pay.

Your employer has to give you notice, or pay you in lieu of notice, as well as pay out any other owing obligations such as annual leave and long service leave.

You should also check any applicable award, industrial agreement or your contract of employment for any other entitlements you might have where your job ismade redundant. If there are entitlements that are more generous than those under minimum standards, you are entitled to those more generous entitlements.

If you think your redundancy wasn’t “genuine” because:

your position still exists;

you could have been redeployed into another position; or

there was another reason for your dismissal, unrelated to business downturn;

then you may have been unfairly dismissed or have had unlawful action taken against you.

IMPORTANT: the time limit for claims involving dismissal can be as short as 21 days.

For further information on this, see our fact sheets on unfair dismissal (national and state system employees), general protections (national system employees) and unlawful termination (state system employees).

For further details on redundancy and redundancy pay, see our fact sheet on redundancy.

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I have been dismissed and I don’t know the reason

If you’re not sure why you have been dismissed, you should write to your employer, asking them to clarify the reason for dismissal.

If you have been dismissed due toa downturn associated with the coronavirus, you have likely been made redundant (see above and our fact sheet).

If your employer refuses to give you a reason and you don’t believe it was because of a downturn associated with the coronavirus, you may have been unfairly dismissed. Where your employer does not give you an adequate reason for your dismissal, related to performance or conduct, this can be considered unfair dismissal.

IMPORTANT: the time limit for claims involving dismissal can be as short as 21 days. See our fact sheets on unfair dismissal for further details.

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I have been dismissed (or punished) because I have coronavirus or because I complained about safety standards

If you have been dismissed or punished because you have coronavirus or because you complained about safety standards, it is likely that your employer’s actions are unlawful. You may be able to make a general protections claim (if you’re a national system employee), an unlawful termination claim (if you’re a state system employee) or a discrimination-based claim.

For further information see our fact sheets on general protections (national system employees), unlawful termination (state system employees) and discrimination (all employees).

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Government assistance

You may be eligible for assistance where you have been made redundant or stood down, or are no longer working due to the impact of coronavirus. For more information click the following link:

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